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HQ 956472

September 19, 1994

CLA-2 CO:R:C:F 956472 ALS


TARIFF NO.: 0602.99.6090

Ms. Phyllis L. Cooper
Border Brokerage Co., Inc.
P. O. Box 3549
Blaine, WA 98231

RE: Potted Plants in Various Growing Media

Dear Ms. Cooper:

This is in reference to your letter of March 21, 1994, to the Regional Commissioner of Customs, New York, NY, and your letter of May 12, 1994, to this Office. You requested reconsideration of Headquarters Rulings Letter (HRL) 087574 of June 12, 1990. Since the currently presented facts regarding the growing media for live potted plants differ from those presented in connection with the prior ruling and there is no indication that the prior ruling was incorrect based on the facts then available, we are treating your letters as a new request for a binding ruling rather than a reconsideration request.


The articles under consideration are live potted plants imported from Canada in growing media of different compositions. Five samples provided with the request indicate that potted plants will be imported in one of the following mixtures: (1) 50 percent sawdust/mulch, 45 percent peat, and 5 percent sand/disintegrated rock; (2) 90 percent peat, 5 percent perlite, and 5 percent sand/disintegrated rock; (3) 95 percent topsoil and 5 percent sand/disintegrated rock; (4) 85 percent peat, 5 percent sawdust/mulch, 5 percent perlite and 5 percent sand-disintegrated rock; and (5) 90 percent topsoil, 5 percent sawdust/mulch, and 5 percent sand/disintegrated rock. The plants in these various growing media are products of Canada or the United States.


Whether plants potted in the enumerated mixtures are classifiable as live plants with soil attached to the roots?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the classification of the potted plants we note that they are either grown in the importer's fields in Surrey, BC, Canada, or are imported from various United States locations. The Canadian supplier has provided a description of 5 of the mixtures in which these plants are potted and exported to the U.S. Although the supplier indicates that there might be other mixtures and that "these mixtures are fair representation of these various soil mixtures" our ruling will be limited to the mixtures presented to us for consideration.

In order to determine whether potted plants in the noted mixtures are classifiable in subheading 0602.9.6090, HTSUSA, as live plants (including their roots) with soil attached to roots, it is necessary to determine whether these enumerated mixtures constitute soil for tariff purposes. In this regard we considered Customs historical treatment of such mixtures. In HRL 068273, issued February 8, 1982, we referenced the definition of soil employed in the regulations of the United States Department of Agriculture in section 330.1000(t), title 7, Code of Federal Regulations (CFR). That provision specifies that soil is "(t) The loose surface material of earth in which plants grow, in most cases consisting of disintegrated rock with the admixture of organic material and soluble salts." We referenced that definition of soil in HRL 069035, dated February 10, 1982, HRL 087574, dated November 21, 1990 and HRL 089567, dated September 6, 1991.

We believe that the enumerated mixtures which, among other things, contain disintegrated rock or sand, meet with that definition. In this regard we note that, in the Second College Edition, The American Heritage Dictionary, sand is defined as - 3 -
loose, granular, gritty particles of worn or disintegrated rock. Accordingly, we have concluded that the enumerated mixtures, which contain disintegrated rock, in which the potted plants arrive in the United States are soil for tariff purposes. Thus, we believe that the plants arriving in the United States in these mixture should be considered as other live plants with soil attached to their roots.


Plants, in mixtures containing sand, such as (1) peat, sawdust/mulch, and sand, (2) peat, perlite, and sand, (3) topsoil and sand, (4) peat, sawdust/mulch, perlite, and sand, and (5) topsoil, sawdust/mulch and sand, are classifiable in subheading 0602.99.6090, HTSUSA, which provides for other live plants (including their roots), cuttings and slips; mushroom spawn, other, other, other, with soil attache to roots, other. Potted plants so classifiable are subject to a general rate of duty of 3 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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